Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights
| Author | Fred J. Bruinsma,Matthijs De Blois |
| DOI | 10.1177/092405199701500204 |
| Published date | 01 June 1997 |
| Date | 01 June 1997 |
| Subject Matter | Article |
Rules
of
Law from Westport to Wladiwostok. Separate Opinions
in the European Court
of
Human Rights
Fred J. Bruinsma and Matthijs de Blois'
Abstract
Whereas lawyers usually pay only attention to the added value
of
majority judgments in
COurts,
we have taken an interest in the separate opinions
of
the European Court
of
Human Rights (the Court). The jurisdiction
of
this court stretches from Westport (Ireland)
to Wladiwostok (Russia). and from Iceland to Cyprus. Member States
of
the Council
of
Europe have a right to select a national for the Court, and are politically expected to
accept the Court's jurisdiction. The Preamble
of
the European Convention for the
Protection
of
Human Rights and Fundamental Freedoms (ECHR) states that the
participating European countries have 'a common heritage
of
political traditions, ideals.
freedom and the rule
of
opinion, and pursuant to Article 43 the judge
of
the State in the dock sits ex officio. These
two articles taken together inspired us to hypothesise about the separate opinion: does a
jUdge dissent more often
if
the majorityfinds a violation
of
the Convention by his/her own
country? A separate concurring opinion might be understood
ifwe
consider the judge as
an intermediary between the international court and national audiences. Both ways,
separate opinions are seen as expressions
of
a national orientation. On the basis
of
a
quantitative research
of
the voting pattern from 1991 to 1995 we may conclude that the
Court has become a truly international court. since it does not show any impact
of
national backgrounds. However, underneath the surface offigures wefound some striking
examples
of
national bias in separate opinions. In the second
half
of
this article we bring
them together under the heading
of
conservatism and judicial restraint -a separate
undercurrent
of
the Court's mainstream
of
liberalism and judicial activism. There is not
just one rule
of
law in Europe. there are many rules
of
law. But to see them you have to
look beyond the majority judgment.
INational Judges in an International Court
The nomination procedure explicitly takes into account the national background
of
the
.iudges in the Court. Article 38 states:
'The
European Court
of
Human Rights shall consist
of
anumber
of
judges equal to that
of
the
Members
of
the Council
of
Europe. No two judges may be nationals
of
the same State.'
Article 39(1) states:
'The
members
of
the Court shall be elected by the Consultative Assembly by a majority
of
votes cast from a list
of
persons nominated by the Members
of
the Council
of
Europe; each
Member shall nominate three candidates,
of
whom two at least shall be its nationals.
The authors both work at the Department of Legal Theory of the Law Faculty of Utrecht University.A
Dutch version of this article has beenpublished in the NJCM-Bu/letin, Vol. 21,
No.7,
1996, pp. 889-904.
Netherlands Quarterly
of
Human Rights, Vol. 15/2. 175-186. 1997.
©Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands.
175
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